The ruling that it is unfair to use only national demographics to implement affirmative action was a victory for equality, the Foundation said.
The foundation said in a statement on Saturday that the way the Employment Equity Act sought equality through demographic representation fell short of the constitutional values of non-racialism and had yet to be tested in a higher court.
Judge Hilary Rabkin-Naicker at the Labour Court in cape Town on Friday ruled in favour of 10 Western Cape correctional service officials who had challenged the department's employment equity plan. Initially, five officials challenged the department. They were followed by another five who had been overlooked for promotion on racial grounds. Trade union Solidarity took up the matter on behalf of the 10.
The Court also ruled that the department take immediate steps to take both national and regional demographics into account when setting equity targets. This was applicable at all levels of the department's work force.
The De Klerk Foundation said the department issued its employment equity plan in 2011, which gave instructions for the attainment of equality targets throughout the service. "The targets – 79.3% for black South Africans, 9.3% for white South Africans, 8.8% for coloured South Africans and 2.5% for Indians would bring employees into line with national and not regional demographics," it said.
This was despite the fact that in the Western Cape coloured South Africans comprised 54% of the population. "As a result, the commissioner of correctional services prohibited the appointment or promotion of any more coloured or white South Africans," the foundation said.
"[This was] despite the fact that coloured and white applicants were often the best qualified and most experienced candidates for vacant posts."
The foundation viewed the department's employment equity plan as illegal, unconstitutional and simply unfair, as non-racialism was one of the founding values in the Constitution. It said the department's plan was aimed at mathematical representivity and not broad representivity as stated by the Constitution.
"It is clearly not fair since it once again entrenches race as the sole criterion for promotion and would require coloured employees of the department to move away from their communities if they want to be promoted," the foundation said.
"It does not redress imbalances of the past because it creates new racial imbalances between the profile of the people of the Western Cape and the officials who are intended to serve them." – Sapa